The Work Health and Safety Act 2020 (WA) (WHS Act) was passed through parliament in 2020 and took effect from 31 March 2022. Employers are largely expected to “hit the ground running” in compliance with the new laws. HWL Ebsworth aims to help you to do just that, with a guide to the upcoming changes.
What are the main changes?
Introduction of the PCBU concept: a “Person Conducting a Business or Undertaking” replaces the outdated concept of an “employer” as the person with primary health and safety duties. A PCBU can be a sole trader, each partner within a partnership, a joint venture, a company, an unincorporated association, a not for profit organisation, a government department or a public authority (including a local government) whether or not they are operating for profit or gain. The real significance of this change will be felt by non-operating business partners and joint venturers who will now have to take a much more active role in ensuring safety in the business.
The concepts of Worker and Workplace have been expanded: Worker now includes employees, contractors, sub-contractors, employees of contractors, employees of labour hire companies, apprentices, trainees, work experience students and, in certain situations, volunteers. Workplace is defined as a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. The term place includes vehicles, vessels, aircrafts or other mobile structures and extends to any waters and installation on land.
A change to the primary duty: the new laws require all PCBUs to ensure, so far as is reasonably practicable, while workers are at work in the PCBU, the health and safety of:
- workers engaged, or caused to be engaged by the person; and
- workers whose activities in carrying out the work are influenced or directed by the person.
This change will drive a need to focus on the risks a hazard may pose and to manage those risks to a practicable level. The duty to ensure health includes a duty with respect to taking positive practicable steps to ensure the mental health of workers.
Penalties for WHS breaches are no longer insurable: duty holders are no longer be able to obtain insurance for a penalty imposed following a WHS prosecution. Individuals who breach this are liable for penalties of up to $51,000 and body corporates are liable for penalties up to $250,000. This change means that businesses need to ensure they are taking proactive steps to develop procedures designed to meet their legal obligations and to ensure compliance with those procedures by their workforce. Duty holders should be aware that duties are not transferrable and cannot be contracted out of.
Duty to consult with other duty holders and workers and their representative: the new laws require duty holders with shared responsibilities to work together to make sure someone does what is needed. This requires consultation, co-operation and co-ordination between duty holders such as partners, joint venture partners, and principals and contractors. PCBUs are now also be required, so far as is reasonably practicable, to consult with workers and health and safety representatives about matters that directly affect them. This duty extends to consulting with all kinds of workers, not just the PCBU’s own employees. Meeting these consultation duties may require some planning as to how and when consultation will be undertaken in your business.
Inclusion of the new offence of “Industrial Manslaughter”: under the new laws, individuals can be charged with “Class One” or “Class Two” Industrial Manslaughter offences in the event of a workplace death. Class One Industrial Manslaughter covers conduct that is engaged in, with knowing disregard, that it is likely to cause death and carries a maximum jail term of 20 years. Class Two Industrial Manslaughter covers conduct that is a negligent breach of a duty owed by a PCBU that results in death and carries a maximum jail term of 10 years.
Officer due diligence: officers of PCBUs now have personal obligations to demonstrate a proactive approach to workplace health and safety matters. Officer has the same meaning as defined in the Corporations Act 2001 (Cth) and includes directors and/or any person who make or participate in making decisions that affect the whole, or a substantial part, of the PCBU. Officers must now exercise due diligence to make sure the business meets its duties to protect workers and other persons against harm to health and safety. All officers now need to be trained to ensure they fully understand these obligations and are taking all necessary steps to comply with them. There is an obligation on an officer to refuse work if it cannot be done safely.
What are the other changes?
There are a significant number of newly released guidance materials that PCBU’s need to come to grips with to demonstrate compliance with the WHS Act. Many of these relate to psychosocial hazards in the workplace. We set out the major guidance materials in summary below.
Work Health and Safety Regulations
Under the previous laws, the various regulations relating to occupational health and safety were contained in a variety of industry and hazard specific regulations. These have been consolidated into three sets of regulations – the Work Health and Safety (General) Regulations 2022, the Work Health and Safety (Mines) Regulations 2022 and the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022.
Providing a simplified and cohesive approach, these regulations are less prescriptive that their predecessors whilst still specifying the way in which some duties under the WHS Act must be met. They also prescribe procedural or administrative requirements to support the WHS Act.
Of particular interest in the regulations, is regulations 33 to 38, which created a specific duty to identify hazards and for the duty holder to use the hierarchy of control to manage those hazards. This is a new duty that appears to replicate the general duty provisions in the WHS Act.
Code of Practice – Workplace Behaviour
This Code aims to prevent and manage inappropriate or unreasonable behaviour that may occur in the workplace, encompassing all types of workplace behaviour that may create a risk to the personal health and safety of workers. Whilst the Code captures physical behaviours, it also extends to psychological and social conditions which may negatively impacts workers. It is the responsibility of PCBUs to ensure, so far as reasonably practicable, that workers and other people in a workplace are not exposed to psychological health and safety risks.
Inappropriate or unreasonable behaviour includes, but is not limited to:
- bullying;
- harassment;
- sexual harassment;
- racial harassment;
- violence and aggression;
- discrimination;
- misconduct; and
- escalated or unreasonable conflicts.
Code of Practice – Psychosocial Hazards in the Workplace
This Code captures hazards and conditions in workplaces that pose psychological and social risks to workers (as opposed to just physical risks). These include the obvious factors of bullying, harassment, violence and aggression, but also the less obvious issues of fatigue, stress and burnout that can compromise a worker’s psychosocial wellbeing. Under this Code, it is the responsibility of PCBUs to facilitate a systematic approach to managing psychosocial hazards in order to meet their responsibilities under the WHS Act and to create a safe and healthy work environment for employees.
Code of Practice – Violence and Aggression in the Workplace
This Code captures any incident where a person is harassed, threatened, attacked or physically assaulted within a workplace, and includes any form of physical assault, sexual assault, verbal abuse, threats, intimidation and harassment (including sexual harassment).
Under this Code, PCBUs must consider violence and aggression risk management as part of an overall prevention plan. There are three key areas employers should focus on when implementing this plan, including managing violence and aggression in the workplace, responding to any type of abuse in the workplace and ensuring post-incident support services are available such as counselling or legal support should they arise.
Code of Practice – Mentally Healthy Workplaces for FIFO Workers
The first of the psychosocial codes of practice to be implemented in Western Australia, this Code highlights the importance of creating mentally healthy workplaces for FIFO workers to protect the mental wellbeing of workers, to build trust and respect between workers and leadership and to improve motivation, productivity and job satisfaction within the workplace.
Under this Code, PCBUs are encouraged to create and develop a mentally healthy workplace by:
- promoting positive practices at work that support mental wellbeing;
- eliminating or minimising any psychosocial workplace hazard;
- implementing support strategies to insure workers have a safe space to discuss their mental health, such as counselling services;
- intervening early to support ant person that may show signed of distress; and
- facilitating access to appropriate services such as recovery at work or return-to-work support.
Code of Practice compliance centres around the implementation of a Risk Management Approach.
To comply with the above Codes, PCBUs should adopt a proactive risk management approach in order to prevent and reduce psychosocial risk in the workplace by:
- identifying the hazards and risk factors;
- assessing the risks;
- controlling the risks by making the changes necessary to eliminate the hazards or risk factors, and if this is not practicable, then minimising the risk of harm; and
- monitoring and reviewing the effectiveness of controls and adapt or improve the controls where necessary.
What approach will the regulator take toward breaches?
WorkSafe WA and Resources Safety have been consolidated into the Safety Regulation Group under the independent WorkSafe WA Commissioner, Darren Kavanagh. Worksafe WA has released its Statement of Regulatory Intent, Compliance and Enforcement Policy and Prosecution Policy which together set out the likely approach that WorkSafe WA intends to take in the first 12 months of operation of the WHS Act.
The Policies confirm that WorkSafe WA will continue to provide a supportive and educative regulatory approach to PCBUs for low risk breaches of new legislative requirements where the PCBU is able to demonstrate genuine attempts to comply with the WHS Act. However, for breaches that were offences under the previous laws, and for incidents involving serious breaches of the law, PCBUs may expect to be prosecuted in accordance with the WorkSafe WA Prosecution Policy.
The WHS Act will allow WorkSafe WA inspectors to issue PCBUs with consequences dependant on the circumstances and by applying a consistent approach to similar fact circumstances in order to achieve greater certainty and protection in the workplace. Where a breach has occurred, in addition to recommending prosecution, a WorkSafe inspector may issue PCBUs with:
- advice on compliance;
- assistance to mediate and resolve workplace disputes;
- issuance of improvement notices;
- issuance of prohibition notices;
- revoking, suspending or cancelling authorisations;
- enforcing criminal prosecutions; and
- publishing enforcement actions and outcomes.
WorkSafe WA will continue to investigate incidents involving an actual or potential breach of the WHS Act but, whilst PCBUs will be aware of the obvious breaches such as an employee suffering serious injury or illness at work, fatality incidents and sexual harassment, WorkSafe WA investigations will extend to less obvious breaches.
This may involve non-compliance with licenses, matters relating to physical and psychological hazards, offences against health and safety representatives, failure to take measures to control and notify personal health and safety risks as well as on compliance assessments and investigations which may occur after a breach.
WorkSafe WA inspectors may conduct site visits either in response to an incident or a complaint or as part of a targeted compliance program. This means that inspectors may require the employer or persons involved to produce documents relevant to WHS and conduct interviews requiring these persons to answer. This may result in the inspector seizing information to use against the employer as evidence of an offence, and may issue a notice of improvement or prohibition notice. It will continue to be an offence to obstruct a WorkSafe WA inspector in the course of their duties, including by refusing to comply with lawful directions under the WHS Act.
What else may lead to a prosecution?
- Failure to consult between multiple PCBUs where the risk is obvious;
- Failure to carry out due diligence;
- Labour hire employees working outside of their skill or scope;
- Taking on work contracts which ultimately lead to risks and safety issues;
- Contractors failing to be responsible for not only employees, but also the plant and equipment of the client; and
- Failure to audit to ensure safety procedures and systems are being complied with.
What do I need to do now?
PCBUs and their officers need to take urgent steps now to ensure they are compliant with the WHS Act from today, 31 March 2022. This can be done by:
- understanding how the WHS Act impacts on your business;
- reviewing and updating systems and processes to ensure compliance with the WHS Act;
- providing training to officers about the new obligations and what Courts and regulators are likely to consider is required for compliance;
- developing evidence of daily compliance with the obligations under the WHS Act; and
- implementing audits to ensure ongoing compliance with the WHS Act.
This guide was written by Erica Hartley, Partner and Danielle Flint, Special Counsel with assistance from Katrina Nelson, Law Graduate.
